TaxTMI 
TaxTMI 
2016 (4) TMI 1407
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....14 before City Civil Court, Bengaluru. The original judgment and decrees came to be modified during the pendency of execution petitions. Hence, applications for amendment came to be filed in these two execution petitions seeking for amendment namely, to amend the amounts mentioned in the respective executive petitions. Applications for amendment of executive petitions came to be opposed by both the judgment debtors. At the time of hearing of these amendment applications, Executing Court suo motu raised the issue of maintainability of these execution petitions i.e, Execution Petition Nos. 1267/2014 and 1274/2014 since said judgment and decree passed against Kingfisher Airlines Limited as well as United Breweries (Holdings) Limited was one and the same. After hearing the Learned Advocates appearing for the parties, Executing Court by impugned orders has arrived at a conclusion that since the amount claimed in both the Execution Petition Nos. 1267/2014 and 1274/2014 are one and same and decree holder having filed two Execution Petitions viz., 1268/2014 and 1276/2014 which relates to same transaction, decree holder with an intention to recover double the decretal amount, directed the d....
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....r has to restrict its prayer as against jointly and severally liability fixed under the decrees, though it has been held that two execution petitions i.e, Execution Petition Nos. 1267/2014 and 1274/2014 are maintainable. RE: W.P No. 32401/2015.32402/2015 AND W.P.32404/2015 4. Decree holders in these three writ petitions has filed three (3) Execution Petitions Nos. 1272/2014, 1273/2014 and 1275/2014 for enjoying the fruits of judgment and decrees obtained by them from High Court of Justice Queen's Bench Division, Commercial Court, Royal Court of Justice on 13.12.2013 Said judgment and decrees came to be modified by the Court which originally passed the judgment and decrees. Hence, decree holders in these three (3) execution petitions filed applications for amendment of the execution petitions namely, decree holders sought for incorporating the modified decretal amounts in the pending execution petitions, contending interalia it is a subsequent event. Said applications for amendment came to be opposed by the judgment debtors in all three (3) execution petitions by filing detailed objections. At the time of considering these applications for amendment, Executing Court suo moto r....
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.... liability of a surety is co-extensive, but is not in the alterative and as such both principal and surety would be liable at the same time to the creditors and hence, Executing Court could not have directed the decree holder to amend execution petitions which would in effect result in decree holder restricting the claim in execution petition contrary to the decree obtained by it. He would also rely upon the Judgment of Division Bench of this Court in the case of The Hukumchand Insurance Co. Ltd. v. The Bank Of Baroda . AIR 1977 KAR 204, where under it has been held that liability of a principal debtor and liability of a surety is co-extensive with that of the former are really separate liabilities although arising out of the same transaction and two liabilities are separate and distinct. Hence, he would contend that liability of the surety being co-extensive with that of principal they are in fact separate liability which can be enforced independently against both of them. He would also rely upon the Judgment of Apex Court in the case of Bethia Venkanna v. Sait Chunilal Moolchand Registered Firm, Kakinada, By Managing Partner, Chunilal . AIR 1961 AP 63, where under it has been cle....
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....e case of Venkateshwara Rao v. Margadarshi Chit Funds Ltd., (supra) and contends that dismissal of Execution Petitions Nos. 1272/2014, 1273/2014 and 1275/2014 on the ground of Execution Petitions Nos. 1269/2014, 1270/2014 and 1271/2014 has been filed against principal debtor was pending and as such, it would result in every chance of misuse by decree holder is erroneous and liable to be set-aside. Hence, he prays for allowing the writ petitions and in support of his submission he has relied upon the following Judgments: (i) Bethia Venkanna v. Sait Chunilal Moolchand Registered Firm, Kakinanda By Managing Partner, Chunilal (supra) (ii) The Hukumchand Insurance Co. Ltd. v. The Bank of Baroda (supra) (iii) Ram Narayan Bhatted v. Vimala Jhavar . 2002 1 CTC 48. 7. Per contra, Sri. Sajjan Poovayya, Learned Senior Counsel appearing on behalf of respondents in W.P 32401/2015, W.P 32402/2015, W.P 32403/2015, W.P 32404/2015 and W.P 32405/2015 would support the impugned orders and also contend that orders passed by the Executing Court on maintainability should not be interfered in exercise of supervisory jurisdiction under Article 227 of Constitution of India and such exercise should n....
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....ry of amounts due and payable as per judgment and decree passed in United Kingdom Court which claim was allowed initially on 13.12.2013 as per Judgment and decree and later modified on 23.06.2014 Cause notice was issued on these execution petitions to the Judgment debtors and they have appeared and filed their objections to all the execution petitions. In view of respective decrees having been modified, it resulted in filing applications for amendment of execution petitions and at that point of time. Executing Court suo moto raised the issue regarding maintainability of two separate petitions filed by decree holders against principal borrower and guarantors and has passed the impugned orders by recording following findings: FINDINGS RECORDED BY EXECUTING COURT 11. In Writ Petition No. 32399/2015, W.P No. 32400/2015, W.P No. 32403/2015 and W.P No. 32405/2015 Executing Court has held that two execution petitions namely, against principal borrower and guarantor are maintainable but has directed the decree holder to amend the execution petitions so that claim in the execution petitions would not exceed the amount due under the transaction in which decree holder has obtained separate ....
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....examined in the background of impugned order. At the outset it requires to be noticed that a decree holder by virtue of power available under Order 21 Rules 11, 21 and 30 would be entitled to proceed simultaneously against different Judgment debtors for recovery of the decretal amount. Code of Civil Procedure or any other law does not indicate that decree holder would have to restrict his claim in the simultaneous execution petitions filed against the Judgment debtors where the claim is joint and several. Infact similar issue came up for consideration before a Division Bench of Andhra Pradesh High Court in the case of Bethia Venkanna v. Sait Chunilal Moolchand Registered Firm, Kakinada, By Managing Partner, Chunilal (supra) and point formulated for consideration was to the following effect. "3. The simple point that arises for consideration in this appeal is as to whether simultaneous execution can proceed in two separate applications against two different judgment-debtors for the same amount due under the decree, at one and the same time?" 15. Having raised said question it came to be held that a decree holder would be entitled under law to proceed simultaneously against both J....
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....iefs which were available to the decree-holder and it is for the latter to choose and decide. Rule 21 is general in its terms and it contemplates that the execution of a decree against the person and property of the judgment-debtor can proceed simultaneously. In fact, its implication is that in the absence of a specific provision, the Court may not have any discretion to refuse the simultaneous execution. 7. In our judgment, a decree-holder can in law file two execution petitions when it is clear, that the execution in each petition is only-for the decree amount due from the defendants concerned in that petition. It is not disputed that the full amount of decree is due from each of them - as in the present case, when E.P No. 42 of 1957 was filed against the second defendant, obviously the full amount of Rs. 19,282-12-3 with subsequent interest and costs was due on that decree from the second defendant and the full amount of Rs. 14,619-13-7 with interest and costs was due from the first defendant. It cannot be pretended for a moment that every Execution Petition filed against every judgment-debtor succeeds cent per cent and thereby results in the realisation of the entire amount d....
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....on, the two liabilities are distinct. The liability of the surety does not also, in all cases, arise simultaneously. This proposition finds support in a passage from Halsbury's Laws of England (Third Edition, Volume 22 para 819)" 17. Division Bench of Madras High Court in the case of Ram Narayan Bhatted v. Vimala Jhavar (supra) after referring to the Judgment of Andhra Pradesh High Court in the case of Bethia Venkanna v. Sait Chunilal Moolchand Registered Firm, Kakinada, by Managing Partner, Chunilal (supra) where under it was held that decree holder is entitled under law to proceed simultaneously against different Judgment debtors for the same amount in execution of his decree and the specific permission of the Court is not required for such a course held that there is no specific provision of law which requires permission to be obtained from the Court for simultaneous execution of decree by decree holder before the Court which passed the decree and also Court to which decree has been transferred. Though it was examining as to whether under Order 21 Rule 22 CPC execution petition when filed as to whether notice is necessary to be sent to the Judgment Debtor or not. In princip....
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....nst the decree holders as indicated herein below: Execution Petition No. Name of decree holder Name of judgment debtor Rank of the judgment debtor in the judgment 1272/2014 JB 2443 INC. (USA) United Breweries (Holdings) Ltd. Defendant-Guarantor 1269/2014 JB 2443 INC. (USA) Kingfisher Airlines Defendant-Principal Borrower 1273/2014 AWAS Ireland Leasing Three Ltd. United Breweries (Holdings) Ltd. Defendant-Guarantor 1270/2014 AWAS Ireland Leasing Three Ltd. Kingfisher Airlines Defendant-Principal Borrower 1275/2014 AWAS Ireland Leasing Three Ltd United Breweries (Holdings) Ltd. Defendant-Guarantor 1271/2014 AWAS Ireland Leasing Three Ltd Kingfisher Airlines Defendant-Principal Borrower 1274/2014 PAFCO 2916 INC. United Breweries (Holdings) Ltd. Defendant-Guarantor 1267/2014 PAFCO 2916 INC Kingfisher Airlines Defendant-Principal Borrower 1276/2014 PAFCO 2916 INC United Breweries (Holdings) Ltd. Defendant-Guarantor 1268/2014 PAFCO 2916 INC Kingfisher Airlines Defendant-Principal Borrower Thus, it could be seen from the above referred tabular column that decree holder has proceeded to execute the decree by filing execution petitions both against the principal borrower as well as guaran....